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Channel: Vicky Hartzler – ThinkProgress

In political reversal, Air Force allows for anti-gay discrimination

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The Air Force has reversed a ruling against a colonel who refused to recognize the same-sex spouse of a retiring master sergeant. According to Air Force Secretary Heather Wilson, allowing for the discrimination was “an example of a situation in which protected, and potentially competing, interests must be carefully examined and resolved.”

It’s incredibly uncommon for a secretary to overrule such a decision in this fashion, and there is significant evidence that it was largely a political decision.

The situation concerned Colonel Leland Bohannon, who was handling the paperwork for a retiring master sergeant in his command. Though Bohannon had no problem signing most of the forms, he refused to sign a certificate of appreciation for the sergeant’s husband. “It is customary to present the member’s spouse with a certificate of appreciation for the support and sacrifice made during the member’s career,” the Air Force’s guidance states. “The office responsible for preparing the member’s certificate also prepares the certificate for the spouse.”

Bohannon claimed that signing the certificate would “signify his personal endorsement of the same-sex marriage,” so he sought a religious accommodation to excuse him from signing it. That request, however, was not considered. A two-star general signed the certificate in Bohannon’s place.

Upon learning that his own commanding officer refused to sign a certificate thanking his husband, the retiring master sergeant filed a complaint alleging unlawful discrimination. The Air Force agreed, suspending Bohannon from his position and halting consideration of his promotion to brigadier general.

The First Liberty Institute, an anti-LGBTQ legal organization, appealed on Bohannon’s behalf in October. As part of that effort, First Liberty recruited several lawmakers and organizations to write to Wilson asking her to intervene and overturn the decision. Among the letters sent to Wilson was a letter from eight Republican senators, including Ted Cruz (R-TX), Marco Rubio (R-FL), and James Inhofe (R-OK). Another letter, spearheaded by the Family Research Council (FRC), an anti-LGBTQ hate group, was signed by a who’s-who of organizations and individuals that advocate against LGBTQ equality.

Congresswoman Vicky Hartzler also wrote her own letter to Wilson, echoing the same arguments First Liberty made in its appeal. As a member of the House Armed Services Committee, she has a long history of trying to impose an anti-LGBTQ agenda on the military through amendments to defense spending bills. This has included attempts to keep same-sex marriage banned in the military and most recently, a legislative ban on transgender service that ultimately failed.

First Liberty and its surrogates argued that Bohannon’s “religious freedom” should justify his discrimination. They also downplayed the significance of the certificate and even argued that because it was denied to his spouse and not to him directly, the master sergeant didn’t have standing to claim discrimination. This is absurd, of course, because if other members of the unit received certificates of appreciation for their spouses signed by their commanding officers and he didn’t, it’s clearly disparate treatment.

But Wilson was sympathetic to Bohannon’s position. That’s unsurprising, given her own long history of anti-LGBTQ advocacy. Wilson once said, for example, that when it comes to homosexuality, “There are things I’m willing to tolerate that I’m not willing to approve of.” As a member of Congress, she repeatedly voted against hate crimes protections for the LGBTQ community, vocally opposed marriage equality, and even downplayed the impact of anti-gay bullying.

First Liberty shared news of its victory by publishing a letter Wilson wrote back to Hartzler announcing that the Director of the Air Force Review Boards Agency had granted Bohannon’s appeal. “The Director concluded that Colonel Bohannon had the right to exercise his sincerely held religious beliefs and did not unlawfully discriminate when he declined to sign the certificate of appreciation for the same-sex spouse of an airman in his command,” she explained.

But FRC credited Wilson herself for making the decision. The hate group’s spokesperson, Retired Lt. Gen. Jerry Boykin, even noted how uncommon it is for a secretary like Wilson to overturn such a ruling. “For an Air Force Secretary to overrule an inspector general is quite rare and sends a message that the religious freedoms of service members will be respected and protected,” he said in a statement. “We applaud the Air Force Secretary for acting on President Trump’s pledge to move the military away from Obama-era political correctness and advance policies that keep our military strong.”

First Liberty likewise credited Wilson directly. Hiram Sasser, general counsel for the organization, said in a statement, “We are very pleased that Secretary Wilson protected the religious liberty of Col. Bohannon. This is clear evidence that the Trump administration is helping to right the ship at the Pentagon.”

LGBTQ military groups were quick to decry the decision. Ashley Broadway-Mack, president of the American Military Partners Association, told the Washington Blade that the reversal was alarming. “This colonel’s action sent a dangerous message to the entire command that he disapproves of every same-sex spouse that supports their service member throughout their military career,” she said. OutServe-SLDN’s Andy Blevins likewise called on military leaders to “learn to divorce their ignorance and prejudice from their leadership.”

When President Trump first nominated Wilson for the position, the Palm Center’s Aaron Belkin said that her selection raised “serious concerns about whether President Donald Trump can be counted on to honor his promise to treat LGBT Americans equally and to provide the armed forces with the best talent to defend this nation.”

It seems LGBTQ people were right to be concerned.



Trump buried a wildly anti-LGBTQ provision in the new North American trade deal

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The Trump administration seems to have edited out LGBTQ protections in the new North American trade agreement with Canada and Mexico (known as the USMCA). The change, an apparent gesture to a group of the most anti-LGBTQ members of Congress, ensures the administration’s own anti-LGBTQ efforts can continue without undermining the agreement.

Originally, the drafted trade agreement called on all three countries to establish “policies that protect workers against employment discrimination on the basis of sex, including with regard to pregnancy, sexual harassment, sexual orientation, gender identity.”

In the final version, however, a new footnote was added that significantly undermines the United States’ obligation to uphold these protections. It states:

The United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article. The Article thus requires no additional action on the part of the United States, including any amendments to Title VII of the Civil Rights Act of 1964, in order for the United States to be in compliance with the obligations set forth in this Article.

This is a reference to a pair of Executive Orders President Obama implemented protecting both federal employees and the employees of federal contractors from discrimination on the basis of their sexual orientation and gender identity. All of the country’s other LGBTQ workers enjoy no enumerated protection under the law, though many courts have agreed that Title VII’s protections on the basis of “sex” also protect LGBTQ people.

The footnote basically ensures that the United States is not held responsible to protect LGBTQ workers to the same degree as Canada and Mexico.

This caveat ensuring the United States doesn’t have to amend Title VII to be in compliance bears a strong resemblance to the administration’s transgender erasure memo as well as its alleged attempts to erase “gender” language from United Nations documents. “Sex,” the administration has consistently insisted, refers only to “biological sex” and extends no protection to transgender people and the discrimination they experience because of their gender identity. Last year, for example, then-Attorney General Jeff Sessions reversed the Department of Justice’s policy of advocating for transgender workers as being protected under Title VII, which protects against discrimination on the basis of “sex.”

A group of 40 of Congress’ most anti-LGBTQ lawmakers, including Reps. Vicky Hartzler (R-MO), Steve King (R-IA), and Louis Gohmert (R-TX), is likely responsible for influencing the edit to the trade agreement. The members, all of whom are Republican, sent a letter to Trump last month threatening that they would not approve the agreement unless the language was removed.

They blatantly applauded the administration for its work dismantling LGBTQ protections. “At the same time your Administration is carrying out a cohesive agenda regarding policies surrounding sexual orientation and gender identity, in the Departments of Justice and Health and Human Services specifically,” they wrote,” it is deeply troubling that the Office of the U.S. Trade Representative (USTR) has included contradictory language in the U.S.-Mexico-Canada Agreement.”

The lawmakers insisted that “a trade agreement is no place for the adoption of social policy,” and they also warned that the language would impede Trump’s efforts to further erode protections on the basis of sexual orientation and gender identity (SOGI). In fact, they specifically pointed out that the language would impede Trump from rolling back Obama’s LGBTQ executive orders. “If the USMCA is enacted with this SOGI language, you would lose your ability to rescind these Obama-era Executive Orders or roll back their implementing regulations to create a unified SOGI policy,” they note, seemingly in anticipation of such a move.

Unfortunately for the letter’s signatories, the footnote actually creates that very problem, essentially codifying Obama’s executive orders as a mandatory part of the trade agreement. Though the agreement prevents him from rescinding the orders, his administration is still finding ways to undermine their protections, such as its recent move to erase guidance from the Office of Personnel Management laying out how to respect transgender employees.

The lawmakers will nevertheless likely be pleased that the footnote maintains the status quo and spares them from having to extend new protections or even reconsider their efforts to actually make LGBTQ workers more vulnerable to discrimination.

Their references to a so-called “cohesive” or “unified SOGI policy,” for example, likely refer to a bill Republican lawmakers introduced last year called the “Civil Rights Uniformity Act.” Not unlike the administration’s proposed transgender erasure memo, the bill would clarify that the term “sex” in federal law only applies to “a person’s genetic sex” and would dictate that “no Federal civil rights law shall be interpreted to treat gender identity or transgender status as a protected class.” If such a bill were ever codified into law, it would decimate protections that many transgender people have already found in the courts.

One such example easily demonstrates why all these efforts to narrowly define “sex” to exclude transgender people are naive. In a case that’s now 10 years old, a federal judge ruled that a Library of Congress employee was wrongly terminated for transitioning under Title VII’s sex protections, explaining his reasoning using a simple analogy. If an employer treated Christians and Jews equally but discriminated against “converts” between the two, District Judge James Robertson wrote, “that would be a clear case of discrimination ‘because of religion.” Thus, discriminating against a transgender person is a clear case of sex discrimination.

Many other courts have agreed in the past decade, using the “sex” protections found in Title VII to protect transgender employees and similarly protecting transgender students under Title IX. However, the Supreme Court, which now has a conservative majority, may reevaluate that interpretation as soon as this coming year, and the Trump administration has already made clear that it hopes the Court rolls back the protections other courts have extended.

In the wake of the Republican lawmakers’ letter, Canadian Prime Minister Justin Trudeau had, in fact, defended the original draft’s language, saying it “represents Canadian values.” Given the footnote only refers to the United States, it changes nothing for Canada or Mexico.

But as far as the Trump administration is concerned, the change is a clear attempt to make sure that the agreement does nothing to compel new protections on the basis of sexual orientation or gender identity — so that it can continue to dismantle and undermine the limited protections U.S. LGBTQ workers currently enjoy.






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